HON. EMMANUEL ETIM EKPENYONG v. ALL PROGRESSIVE CONGRESS & ORS
(2019)LCN/13874(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of March, 2019
CA/C/67/2019
RATIO
JURISDICTION: IMPORTANCE OF JURISDICTION
It has been stated and restated, time without number and in a plethora of authorities, that jurisdiction is the threshold and livewire that determines the authority of a Court of law or tribunal to entertain a case before it. This is absolutely so, because it is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution and law that it will have the judicial power and authority to entertain, hear and adjudicate upon any cause or matter brought before it by parties. Conversely, the absence of such requisite jurisdiction would render any proceedings purportedly conducted by the Court an exercise in futility, thus null, void and of no effect whatsoever, no matter how well conducted. SeeOLOBA VS. AKEREJA (1988) 3 NWLR (PT. 84) 508: OGUNLEYE VS. JEGEDE (1996) 6 NWLR (PT. 199) 501: OKIKE VS. LPDC (2005) 15 NWLR (PT.16 949) 471: ENEMUO VS. DURU (2004) 9 NWLR (PT. 877) 75: OKOYE VS. OKONKWO (2006) ALL FWLR (PT. 332) 1526; UZOUKWU VS. EZEONU II (1991) 6 NWLR (PT. 200) 708. And it is axiomatic, that jurisdiction is never conferred in obscurity. This is so, because the language of the law conferring same upon a Court must be clear and positive. Microscopic eyes are not at all needed in order to discern it. See MANDARA VS. AG FEDERATION (1984) 1 SCNLR 377: NWOBODO VS. RSPEB (2008) 1 NWLR (PT. 1069) 53. . PER YARGATA BYENCHIT NIMPAR, J.C.A.
JURISDICTION: EFFECT OF A COURT LACKING JURISDICTION
Jurisdiction is therefore of paramount importance in the process of adjudication. Where there is no jurisdiction in a Court to handle or adjudicate on a matter before the Court, everything done or every step taken in the proceedings amounts to nothing. Superior Courts of record have times without number re-affirmed the well-known principle that, in civil actions, the jurisdiction of a Court to hear and determine the plaintiff’s action depends on the claims in the Writ of summons and his pleadings. See FELIX ONUORAH VS. KADUNA REFINING PETRO-CHEMICAL COMPANY LTD. (2005) 2-3 NSCR 26; OLA-ANIMASHAUN HARIMOT OLUBUKOLA (MRS.) & ANOR. VS. ATTORNEY GENERAL OF LAGOS STATE & 14 ORS. (2017) ALL FWLR (PT. 867) 552; ABDULHAMID VS. AKAR (2006) ALL FWLR (PT. 321) 1191. PER YARGATA BYENCHIT NIMPAR, J.C.A.
JURISDICTION IN ELECTION PETITION: WHERE IS IT DERIVED FROM
On the other hand, the jurisdiction of the Court to hear and determine an election or election related matter is donated by the constitution or statute, in this case the Electoral Act 2010 (as amended). The contention of the 1st Respondent is that the action of the Appellant was not justiciable and therefore jurisdiction of the trial Court is ousted by Order 29 Rule 1 of the Federal High Court (Civil Procedure) Rules 2009 is untenable. Rules of Court do not bestow jurisdiction on the Court. Jurisdiction is a product of substantive law which is always clearly stated and never obscure. PER YARGATA BYENCHIT NIMPAR, J.C.A.
ELECTION PETITION: WHO IS AN ASPIRANT
An aspirant is a person who aspires or seeks office or strives to contest an election to a political office, the apex Court in the case of PDP & ANOR. VS. TIMIPRE SYLVA & ORS. (2012) LPELR-7814 (SC) defined an aspirant thus:
“An aspirant is a person with a strong desire to achieve a position of importance or to win a competition. Indeed Section 87 (1) of the Electoral Act States that: “A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective posts.”
PER YARGATA BYENCHIT NIMPAR, J.C.A.
ELECTION PETITION: THE JURISDICTION OF THE HIGH COURT IN ELECTORAL MATTERS
The jurisdiction of the High Court on pre-election matters is clearly circumscribed by Section 87(9) of the Electoral Act 2010 (as I need not repeat what is obvious: the observance of, and diligent adherence to the prescriptions in the Electoral Act and Constitutions of political parties, is the only sure way to the attainment of political maturity in our DEMOCRATIC EXPERIMENT IN NIGERIA, UKACHUKWU VS. PDP AND ORS. (supra).” Per NWEZE, J.S.C (Pp. 22-24, paras. E-B ) IN PDP VS. ORANEZI & ORS (2017) LPELR-43471(SC). PER YARGATA BYENCHIT NIMPAR, J.C.A.
JURISDICTION: PROPER COURTS FOR ELECTION MATTERS
The apex Court has held severally that pursuant to Section 87 (9) of the Electoral Act, 2010 [as amended], the proper venue for pre-election matters is the Federal High Court or the High Court of a State or the High Court of the Federal Capital Territory. See SALIM VS. CPC (2013) 6 NWLR (PT. 1351) 501, TARZOOR VS. IORAER (2016) 3 NWLR (PT. 1500) 463, NOBIS-ELENDU VS. INEC (2015) 16 NWLR (PT. 1485) 197. PER YARGATA BYENCHIT NIMPAR, J.C.A.
ELECTION PETITION: THE PURPOSE OF SECTION 87(9) OF THE ELECTORAL ACT
However, the Court has been empowered by the introduction of Section 87(9) of the Electoral Act to see that the guidelines of a political party are not breached albeit with impunity during primaries thereby ensuring that no excesses and arbitrariness of political parties are foisted on a member of their party. The above does not detract from the right of the political party in its sponsorship of a candidate of its choice, that was clearly mirrored in the case of ONUOHA VS. OKAFOR (1983) SCNLR 244; (1983) NSCC 494 and which is still valid. However, while the matter is justiciable, but only under Section 87(9) of the Electoral Act because the power is limited to the proceedings during the primaries election and a winner had emerged at which point that winning would be supported and not allowed to go to another who had lost at the electoral process within the party. The description of the prevailing circumstance is as stated by the apex Court thus:
The Courts will never allow a political party to act arbitrarily or as it likes. Political parties must obey their own constitution and once this is done there would be orderliness and this would be good for politics and the country.” See UZODINMA VS. IZUNASO and TUKUR VS. UBA & ORS. (2012) LPELR-9337(SC). PER YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
HON. EMMANUEL ETIM EKPENYONG Appellant(s)
AND
1. ALL PROGRESSIVE CONGRESS
2. HON. BASSEY ETIM
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A.(Delivering the Leading Judgment): This appeal is predicated upon the judgment of the Federal High Court sitting at Uyo and delivered on the 4th day of February, 2019 in Suit No. FHC/UYO/CS/169/18 by Hon. Justice A. A. OKEKE. The Court below dismissed the suit of the Appellant and dissatisfied with the said decision, the Appellant filed a Notice of Appeal on the 11th February, 2019 setting out 2 grounds of Appeal.
The facts which gave rise to this appeal are reflected and captured in the questions put forward for determination and the reliefs sought. Basically, the claim is against the conduct of the primary election as conducted by the 1st Respondent for Akwa Ibom North East Senatorial District. The Appellant was an aspirant along the 2nd Respondent who was later nominated by the party. The Appellant alleged that the 2nd Respondent was not screened and cleared as an aspirant according to the Constitution and Guidelines for the primaries to select candidates for the general elections.
The Appellant on the 19th day of October, 2018 took out an originating summons against the Respondents wherein he sought the determination of these following questions:
i. Whether the provisions of Article 19(iii) (1) of the All Progressive Congress Constitution 2014 (as amended) as well as the provisions of Article 11 (d) & (e) of the 1st Defendant?s guidelines for the nomination of candidates for the 2019 general elections do not disqualify an aspirant who has not been screened and cleared by the 1st defendant?s screening committee from contesting in the first defendant?s primaries.
ii. Whether the 2nd Defendant?s act of contesting in the Akwa Ibom State North East Senatorial District APC Primaries, when he was not cleared by the 1st Defendant?s screening and selection committee, does not violate the provisions of Article 19(iii) (1) of the All Progressive Congress Constitution 2014 (as amended) and Article 11 (d) & (e) of the 1st Defendant?s guidelines for the nomination of candidates for the 2019 general elections.
iii. Whether the 1st Defendant could lawfully return the 2nd Defendant as duly nominated when he was not screened and cleared by the screening and selection committee as mandatorily required by Article 19(iii) (1) of the 1st Defendant?s Constitution 2014 (as amended) and Article 11 (d) & (e) of the party?s nomination guidelines for the general elections.
If this Honourable Court answers the questions above in the negative, the plaintiff shall be seeking the following reliefs:
i. A declaration that in view of the provisions of Article 19(iii) (1) of the All Progressive Congress?s Constitution 2014 (as amended) and Article 11 (d) & (e) of the party?s guidelines for the nomination of candidates for the 2019 general elections an aspirant not having been screened and cleared by the 1st Respondent?s screening committee is not qualified to contest in the 1st Defendant?s primaries.
ii. A declaration that the 2nd Defendant not having been screened and cleared by the 1st Defendant?s screening and selection committee as mandatorily required by Article 19 (iii) (1) of the All progressives Congress Constitution 2014 (as Amended) and Article 11(d) & (e) of the party?s guidelines for nomination of candidates for the 2019 general elections was not qualified to contest in the Akwa Ibom State North East Senatorial District of the All Progressive Congress Primaries held on the 4th October, 2018.
iii. A Declaration that the 1st defendant cannot return the 2nd Defendant as duly nominated to represent the Akwa Ibom North East Senatorial District in the 2019 general election under the banner of the All progressives Congress because he was not screened and cleared by the screening and selection committee as Mandatorily required by Article 19(iii)(1) of the All progressive Congress Constitution 2014 (as amended) and Article 11 (d) & (e) of the party?s guidelines for the nomination of candidates for the 2019 general election.
iv. An order prohibiting the 1st Defendant from submitting the 2nd Defendant?s name to the Board of Trustees of the All progressive Congress and to the Independent National Electoral Commission as its candidate for the Akwa Ibom North East Senatorial District in the 2019 General elections.
v. An order restraining the 3rd Defendant from recognizing the 2nd Defendant as the winner of the Akwa Ibom State North East Senatorial District All Progressive primaries held on the 4th of October, 2018.
vi. An order directing the 1st Defendant to submit the name of the plaintiff to the 1st Defendant?s Board of Trustees and to the 3rd Defendant as the party?s duly nominated candidate for the Akwa Ibom State North East Senatorial District in the 2019 general elections.
The writ taken out was served on the Respondents and immediately after, the 1st and 2nd Respondents filed their respective preliminary objections challenging the jurisdiction of the Court below to hear the suit. The Court below upheld the preliminary objection and latched on it to dismiss the suit on the ground that it was not a pre-election matter and specifically predicated it on the following grounds:
a. The Appellant did not fall within the limited circumference of co-aspirants as envisaged by Section 87(10) of the Electoral Act;
b.The Appellant?s suit related to the screening and clearing of candidates for p
